F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

JUL 10 2002

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

HULETT FOSTER,
Petitioner - Appellant,
v.

No. 00-6414

GLYNN BOOHER, Warden,

Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Oklahoma
(No. CIV-00-843-T)
Gloyd L. McCoy, Coyle, McCoy & Burton, Oklahoma City, Oklahoma, for
Petitioner-Appellant.
Lori S. Carter, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General, with her on the brief), Oklahoma City, Oklahoma, for RespondentAppellee.
Before EBEL, KELLY, and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.

Garlotte v. Fordice holds that, for purposes of habeas corpus jurisdiction, a

prisoner that is in custody for one of a series of consecutive sentences is in
custody for all of those sentences. 515 U.S. 39, 41 (1995). Foster appeals the
district courts conclusion that it lacked jurisdiction over his 28 U.S.C. 2254
petition because Garlotte does not apply to consecutive sentences that have been
imposed by different courts at different times. Under our jurisdiction pursuant to
28 U.S.C. 1291 and 2253(a), we grant a certificate of appealability, reverse,
and remand.
I
Foster was convicted of grand larceny after former conviction of a felony
on October 25, 1995, in the District Court of McClain County, Oklahoma. He
was sentenced to a term of ten years imprisonment. On September 5, 1996,
Foster pled nolo contendere to second-degree forgery, conspiracy to commit grand
larceny, grand larceny, and two counts of obtaining money by false pretense in the
District Court of Cleveland County, Oklahoma. The Cleveland County court
sentenced Foster to four terms of fifteen years and one term of one year, all to be
served concurrently with each other but consecutively to all other pre-existing
terms. (R. Doc. 10 Ex. E at 2.) Foster took a direct appeal of the McClain
County conviction and also pursued state post-conviction collateral relief; his
direct appeal was denied in August 1996 and his state petition for collateral relief
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was denied in April 2000. On December 29, 1999, Foster completed his sentence
for the McClain County conviction and began serving his fifteen-year sentence for
the Cleveland County convictions. On April 25, 2000, Foster filed a 2254
petition in federal district court attacking only his McClain County conviction.
The magistrate judge recommended that the petition be dismissed for lack
of jurisdiction because Foster was no longer in custody pursuant to the McClain
County conviction even though he was in custody pursuant to the Cleveland
County convictions. According to the magistrates report and recommendation,
The consecutive nature of th[e] sentence [was] not relevant to the custody
requirement. (R. Doc. 13 at 3.) The district court agreed and dismissed Fosters
petition for lack of jurisdiction. Foster timely filed an appeal, and in an
unpublished order and judgment this panel affirmed. We granted Fosters petition
for rehearing.
II
Federal courts may grant habeas relief to prisoners held by state authorities
only when the habeas petitioner is in custody in violation of the Constitution or
laws or treaties of the United States. 28 U.S.C. 2254(a); see also id.
2241(c)(3). This requirement is jurisdictional. Oyler v. Allenbrand, 23 F.3d
292, 29394 (10th Cir. 1994).
At first glance, it would appear clear that we do not have jurisdiction over
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Fosters claim because Foster is challenging a conviction underlying a sentence

for which he is no longer in custody. Indeed, the traditional view was that a
prisoner could attack only the conviction for which he was in custody and only if
success on the habeas claim would lead to immediate release from that custody.
For example, in McNally v. Hill, the Supreme Court applied this reasoning to
affirm the dismissal of a prisoners habeas petition for lack of jurisdiction
because the petition challenged a conviction underlying a sentence which he had
not begun to serve, but which was imposed consecutively to his current sentence.
293 U.S. 131, 135, 138 (1934).
The Supreme Court abandoned this strict definition of in custody in the
context of consecutive sentences in Peyton v. Rowe, 391 U.S. 54, 67 (1968),
specifically overruling McNally. The Court in Peyton held that a prisoner could
challenge the conviction underlying a sentence that he had not yet begun to serve
but that had been imposed consecutively to the sentence that he was currently
serving. Id. The Court reasoned that the McNally rule was poor policy; by
requiring prisoners to wait until they actually started to serve their later sentence,
the rule forced prisoners to delay bringing habeas claimsdelay that might result
in the deterioration of the evidence that they would need to vindicate those
claims. Id. at 6263. The Court concluded that a prisoner serving consecutive
sentences is in custody under any one of them for purposes of the federal
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habeas statutes. Id. at 67.

Garlotte is appropriately described as Peytons complement, or Peyton in
reverse. Garlotte, 515 U.S. at 41. In Garlotte, the prisoner attempted to
challenge the conviction underlying a sentence that he had finished serving, but
that was also first in a consecutive series of sentences that he was still serving.
Id. Garlotte [f]ollow[ed] Peyton and did not disaggregate Garlottes
sentences, but comprehend[ed] them as composing a continuous stream. Id. The
Court therefore [held] that Garlotte remain[ed] in custody under all of his
sentences until all are served, and now may attack the conviction underlying the
sentence scheduled to run first in the series. Id. The Garlotte Court refused to
adopt a different construction of the habeas statutes jurisdictional requirements
simply because the sentence imposed under the challenged conviction lies in the
past rather than in the future. Id. at 46. As a result, the Court held that the
federal courts had jurisdiction over the prisoners claim.
Application of Garlotte would therefore appear to be simple in this case.
Foster is currently serving a continuous stream of two consecutive sentences.
He has finished serving the sentence imposed under the conviction that he is
attempting to attack, but he is still serving the other sentences which were
imposed consecutively. Under Garlotte, we are required to view the consecutive
sentences in the aggregate, not as discrete segments. Id. at 47. Therefore,
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Foster would appear to be in custody for habeas jurisdictional purposes with

respect to the conviction underlying the first sentence because that sentence is
part of a consecutive series of sentences which he is still serving.
III
We consider whether any other factors mandate that the apparently clear
rule of Garlotte should not apply to this case.
A
The facts of Garlotte are somewhat different from the facts presented here.
In Garlotte, the prisoner had been convicted and sentenced to the consecutive
sentences by the same trial court at the same time. Id. at 4142. In this case,
Foster was sentenced to the two segments of his consecutive sentences by
different courts at different times. The State argues that, on these grounds,
Garlotte is not applicable.
This proposed distinction runs against the case law of the Supreme Court.
In Maleng v. Cook, the Court allowed a prisoner currently serving a federal
sentence to challenge the validity of a state sentence that would commence at the
end of the federal sentence. 490 U.S. 488, 49394 (1989). Similarly, in Braden
v. 30th Judicial Circuit Court, the Court held that the in custody requirement
did not prevent a prisoner, currently serving a sentence in Alabama, from
challenging a future detainer by Kentucky on different charges. 410 U.S. 484,
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48789 (1973). Even in Peyton itself, the consecutive sentences in question had
been imposed at different times. 391 U.S. at 5556.
Furthermore, any attempt to distinguish Garlotte on its facts ignores the
language in Garlotte, which sets out a clear and broad rule that we must view
consecutive sentences in the aggregate, not as discrete segments. 515 U.S. at 47.
There is no indication in the language of Garlotte that these principles are or
should be limited to the particular facts that the Court was faced with in that case.
B
The State contends that habeas jurisdiction is lacking because the
invalidation of [Fosters] 1995 conviction will not affect the length of the
sentence which [he] is currently serving. (Appellees Br. at 6.)
We are uncertain what exactly the State means by this argument. It might
be making a mootness claim that we have no jurisdiction because we can grant
no relief. We first note that mootness is a separate question from whether a
prisoner is in custody for purposes of 2254. See Spencer v. Kemna, 523 U.S.
1, 7 (1998) (distinguishing between mootness and in custody jurisdiction);
Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (same); Oyler, 23 F.3d at 294
(describing in custody jurisdiction as a separate and distinct jurisdictional
question from mootness).
Regardless of its proper characterization, the States argument does not
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accurately account for Oklahoma state law. In Floyd v. State, the Oklahoma
Court of Criminal Appeals stated that the situation may arise
where a prisoner serving consecutive sentences on several
convictions succeeds in having one of the sentences invalidated after
it has been fully or partially served. In this instance . . . the state
must credit the sentences remaining to be served on the valid
convictions with the time served under the voided conviction. . . .
[A]ll that [is] involved [is] an adjustment of the administrative
records of the prison authorities so that service on the remaining
valid sentences would commence at an earlier date. Common sense
and fundamental fairness require that under such circumstances the
state should not ignore the period of imprisonment under the invalid
sentence when an appropriate remedy is so readily available.
540 P.2d 1195, 1197 (Okla. Crim. App. 1975) (quoting Miller v. Cox, 443 F.2d
1019, 102021 (4th Cir. 1971)); see also Barr v. Crisp, 555 P.2d 1070, 1071
(Okla. Crim. App. 1976). In other words, under Oklahoma law, if Foster is
successful in voiding his McClain County sentence, the time served under that
sentence will be credited towards his Cleveland County sentence. 1 Fosters
fifteen-year sentence will therefore be treated by the State as if it had begun, at
the latest, on the date of Fosters Cleveland County conviction, instead of
beginning after the completion of his service of the McClain County sentence. 2
Because we base our decision on applicable state law principles, the
question of whether federal constitutional law independently requires granting
Foster credit for time served under the invalidated conviction is not properly
before us.
1

We express no opinion as to whether Oklahoma law or federal

constitutional law would require giving Foster credit for time served before his
(continued...)
2

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Thus, if Fosters habeas petition were successful in the vitiation of the expired
1995 sentence, he might be released from prison at an earlier date, a result that
would clearly affect the length of the sentence which [Foster] is currently
serving. (Appellees Br. at 6.)
We are mindful of the lack of finality our interpretation of the in custody
requirement suggests concerning expired convictions. At the same time,
invalidating an expired conviction is made significantly more difficult by the oneyear limitation period on habes relief contained in 28 U.S.C. 2244(d)(1). See
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000); Miller v. Marr, 141 F.3d
976, 978 (10th Cir. 1998). We have no occasion to address that issue in this case.
C
Finally, the State argues that policy grounds support its proposed
distinction. The State claims first that the concerns expressed in Garlotte are not
implicated in this case and that those concerns included that the ability of a
petitioner to challenge a conviction would hinge upon the arbitrary decision of a
trial court as to which sentence would run first. (Id. at 5.) According to the
State, these concerns do not exist in this case because the order of Fosters
service of the consecutive sentences depended on the order of the imposition of

(...continued)
plea of nolo contendere.
2

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the sentences by two different judges, and therefore the State argues that no
arbitrary decision was ever made.
We question whether, simply because the sentences are imposed by two
separate judges, there is no risk of arbitrariness. Calendars from court to court
and judge to judge can vary greatly in the backlog of cases and the speediness of
pre-trial proceedings, the trial itself, and sentencing. Moreover, different
prosecutors may vary in terms of the priorities they place in prosecuting cases, in
the times they set for trial for particular cases, and in the speed at which they
work. Multiple charges against a single defendant may be consolidated in one
court, separated into different courts, or moved from venue to venue, such that
sentencing that might have been performed by one court is instead divided among
two courts, or vice versa. In short, all of the vicissitudes of the criminal court
docket mean that there is no guarantee that any one case will proceed to
completion ahead of another case, even where the criminal conduct underlying
one case occurred before the other. Given this, we fail to see how arbitrariness
necessarily depends on the number of courts or judges involved in the consecutive
sentencing decision. 3
Indeed, the order in which consecutive sentences are imposed under
Oklahoma law is potentially even more arbitrary because it depends solely upon
which sentence is first received at the correctional institution where the
prisoner is housed, rather than the dates when the sentences are imposed. Okla.
(continued...)
3

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More important, however, is the fact that the Garlotte Court did not rely on
the policy grounds that the State discusses and relied instead on its conclusion
that the rule laid out in Peyton was controlling. Thus, the Court stated that it was
[f]ollowing Peyton in holding that consecutive sentences are viewed in the
aggregate and that therefore the prisoner in Garlotte could challenge the earlier
sentence. Garlotte, 515 U.S. at 41. The Court in Garlotte was motivated by a
desire to establish a clear and consistent rule regarding consecutive sentences.
Having construed the statutory term in custody to require that consecutive
sentences be viewed in the aggregate, we will not now adopt a different
construction simply because the sentence imposed under the challenged
conviction lies in the past rather than in the future. Id. at 46. Indeed, nowhere
in the Garlotte opinion does the Court mention any arbitrariness rationale; the
States argument appears to be based solely on the Courts description of the facts
of Garlottes sentencing in state court, id. at 4142, a description that was not
relied upon at all by the Court in reaching its conclusion.
The States attempted policy distinction is therefore weak and unsupported,
and it certainly is not sufficient to justify a departure on our part from the clear
and explicit command of the Supreme Court that a prisoner serving consecutive

(...continued)
Stat. tit. 21, 61.1.
3

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sentences remains in custody under all of his sentences until all are served.
Id. at 41.
IV
The prior order and judgment filed August 10, 2001 is VACATED, and
Fosters application for a certificate of appealability is GRANTED. The
judgment of the district court is REVERSED, and the case is REMANDED for
proceedings consistent with this opinion.

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